Commentary

The Burmese military junta’s electoral laws for the general election to be held this year are part
of a well-crafted strategy to ensure that the military keeps its stranglehold on the country and
deeply entrenches itself under a civilian façade.

The principal target obviously was Aung San Suu Kyi and the strategy achieved her further
isolation from the political process by effectively barring her from contesting the polls through
clauses in its legislation aimed at excluding her.

Its other major success was dissolution of the National League for Democracy (NLD) by in
essence forcing its hand to not register as a political party to contest the election. But beyond its
expectations was the NLD’s suo motu (of its own volition) declaration that it would stay out of
politics.

It has become easier for the junta to control the political arena in keeping with its systematic
plan, which is moving forward a step at a time. Prime Minister General Thein Sein and 26
ministers resigned from their military posts but not from the cabinet and have joined the party
set up by the Union Solidarity and Development Association (USDA), the military-backed
nationalist organisation the junta created in 1993. The party has submitted papers for
registration with the Election Commission along with 25 other parties, 12 of which have received
approval. The USDA party’s acceptance was a foregone conclusion.

The question that surfaces is whether the prime minister and others who remain in the cabinet
are qualified to join their party under the junta’s Political Parties Registration Law (State Peace
and Development Council Law No. 2/2010), section two, subsections 4(d) and 10(d). The
subsections respectively bar civil servants from setting up parties or joining parties as members.
The ministers admittedly remain government servants and their resignations fail to give them
the right to join the political party. If the prime minister was an elected leader it would have been
a different matter but he was appointed by a head of government that seized power from
elected representatives of the people. The appointment as such was administrative. Where a
junta rules, the appointed prime minister holds the status of a civil servant and is barred from
becoming the member of a party, far less contest an election.

In a true democracy an incumbent prime minister can contest an election because he is elected
and becomes prime minister as the leader of a party that wins a majority of seats in parliament.
Thein Sein is not elected nor is Burma a democracy. Ne Win, while prime minister held
elections in 1959, did not stand for the election nor did any of his cabinet members. It was a
caretaker government and the status of the present government is the same as that of Ne
Win’s. This was also the case in the May 1990 election held by the junta, in which none from the
State Law and Order Restoration Council (Slorc), as the then-government called itself, joined
any political party or contested the election.

In electoral politics, when a transition from military dictatorship to democracy takes place with
an election held by a military government, no military dictator or officers contest elections.

The reason for the departure from this norm is obvious. The junta is unsure that 25 per cent of

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Commentary

the seats set aside for it in all legislatures by the 2008 constitution will guarantee its survival. It
had to muster more strength so it hand-picked military officers who had served it and made
them resign from military posts and, as junta-friendly candidates, enter parliament thinly
disguised as civilians to add to the military’s 25 per cent quota. The diabolical plan to
emasculate the temple of democracy is clearly apparent.

A critical issue for Burma’s democratic transition is that a political party that has a member on its
roll with a court conviction is barred from registering under the electoral law. Restrictions on a
political party as to who qualifies for membership cannot be invoked by law; it is for the political
party to determine the qualifications of its members, its ideology and policies.

The Political Parties Registration Law’s prohibition on a political party admitting convicted
persons as members is a violation of the constitutional right to freedom of assembly, and is
discriminatory and illegal. Even the 2008 constitution under which the election is to be held
guarantees that right. It is for the Election Commissioner to debar a person under a law known
as the Representation of the People Act. The elected government can pass a law putting some
restrictions such as conviction but those restrictions are subject to another kind of restriction
known as a valid derogation. The restriction clause must be clearly defined, without ambiguity. If
conviction is a restriction then it must specify the period and type of offence for that conviction. It
cannot just state, “conviction”.

Ironically, the constitution of 2008 does allow for such a disqualification on the basis of certain
types of offences as it gives Parliament power to enact laws on issues not spelled out in the
constitution. The ruling junta known as the State Peace and Development Council is not a
Parliament and therefore cannot pass such a law because the establishment of such an act is
illegal by virtue of it being ultra vires (beyond the legal power or authority) of the junta.

Constitutional and statutory requirements for the legal recognition of political parties were
discussed in a celebrated case in Nigeria: the Independent National Electoral Commission and
Attorney General of the Federation versus Balarabe Musa. The Supreme Court ruled that there
was no absolute power to refuse registration on untenable grounds.

Therefore the election that will take place this year will be illegal, not free and fair.

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